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VIDEO SURVEILLANCE SHOWING DEFENDANT ENTERING THE MALL WITH EMPTY BAGS FROM A STORE THAT WAS NOT IN THE MALL AND LEAVING WITH ITEMS IN THE BAGS DID NOT AMOUNT TO “REASONABLE SUSPICION” JUSTIFYING THE VEHICLE STOP; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the sheriffs did not have the requisite “reasonable suspicion” to justify the stop of defendant’s vehicle in a mall parking lot. A deputy had seen a surveillance video showing defendant going into the mall with empty bags from a store which was not in the mall and leaving a few minutes later with items in the bags:

The deputies readily acknowledged … that bringing outside bags into the mall was not unlawful or violative of mall policy, that it was not uncommon for mall visitors to return merchandise in bags that were not from the original store, and that mall visitors could properly put merchandise into personal, non-store bags if it was paid for. The first deputy conceded that, while viewing the live surveillance video, he did not observe defendant or the other individuals stealing anything from the subject store, and the second deputy likewise acknowledged that, prior to the vehicle stop, he had not made any observations to indicate that defendant or the other individuals had failed to pay for the merchandise. Additionally, the first deputy observed defendant and the other individuals walking, not running, back to the vehicle after exiting the store, and conceded that it was possible that they had purchased the merchandise during their time in the store … . People v Mcmillon, 2023 NY Slip Op 05064, Fourth Dept 10-6-23

Practice Point: Here the deputies conceded people do bring bags from other stores into the mall and can use those bags for purchases. Therefore, without more, video surveillance of the defendant entering the mall with empty bags from a “non-mall” store and then leaving with items in the bags did not justify the subsequent vehicle-stop.

 

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HERE THE BENEFICIARY OF THE WILL WAS IN A CONFIDENTIAL RELATIONSHIP WITH THE DECEDENT AND THE WILL WAS PREPARED BY AN ATTORNEY ASSOCIATED WITH THE BENEFICIARY; THE UNDUE INFLUENCE OBJECTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the objections to probate of the will alleging undue influence should not have been dismissed. Here the will was prepared by an attorney for a beneficiary of the will:

“Generally, [t]he burden of proving undue influence . . . rests with the party asserting its existence . . . . Where, however, there was a confidential or fiduciary relationship between the beneficiary and the decedent, [a]n inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction . . . , i.e., to prove the transaction fair and free from undue influence” … . Here, there are questions of fact whether the will’s sole beneficiary and her husband were in confidential relationships with decedent and, if so, whether the will was free from undue influence, which preclude judgment as a matter of law.

Further, where, as here, “a will has been prepared by an attorney associated with a beneficiary, an explanation is called for, and it is a question of fact . . . as to whether the proffered explanation is adequate” … . Matter of Cher, 2023 NY Slip Op 05062, Fourth Dept 10-6-23

Practice Point: Here issues of fact re: undue influence were raised by the beneficiary’s confidential relationship with the decedent and by association between the beneficiary and the attorney who drafted the will.

 

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RATHER THAN ADDRESS WHETHER THE REGULATION REQUIRING HOSPITAL PERSONNEL TO BE VACCINATED AGAINST COVID WAS VALID AND ENFORCEABLE, THE FOURTH DEPARTMENT REFUSED TO APPLY THE EXCEPTION TO THE MOOTNESS DOCTRINE TO CONSIDER THE MERITS OF THE APPEAL, FLATLY STATING THE PANDEMIC IS OVER AND IS UNLIKELY TO OCCUR AGAIN (FOURTH DEPT).

The Fourth Department determined the appeal of Supreme Court’s ruling that the regulation requiring hospitals to mandate COVID vaccines for certain personnel exceeded the state’s authority has been rendered moot. The state has repealed the regulation. The exception to the mootness doctrine did not apply:

“[A]lthough the issue of the lawfulness of the [regulation] implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur” given the once-in-a-century nature of the pandemic and the emergency governmental response thereto … . Moreover, “the issue is not of the type that typically evades review” … . Indeed, the regulation at issue here received significant review from numerous state and federal courts … . In any event, under the circumstances of this case, we would “decline to invoke the mootness exception” … . Matter of Medical Professionals for Informed Consent, Individually & On Behalf of Its Members, Kristen Robillard, M.D., Zarina Hernandez-schipplick, M.D., Margaret Florini, A.S.C.P., Olyesya Girich, Rt (r), & Elizabeth Storelli, R.N., Individually & On Behalf of Others Similarly Situated v Bassett, 2023 NY Slip Op 05052, Fourth Dept 10-6-23

Practice Point: Health care workers lost their jobs if they refused to be vaccinated against COVID-19 based upon the regulation at issue here. At this writing, the COVID booster campaign continues unabated for everyone over six months of age. Yet the Fourth Department refused to consider whether the regulation was valid and enforceable, instead declaring the pandemic over and unlikely to occur again.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING RESPONDENT COMMITTED THE FAMILY OFFENSE OF HARASSMENT SECOND DEGREE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the family offense of harassment second degree:

“A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” … . To establish that respondent committed acts constituting harassment in the second degree, petitioner was required to establish that respondent engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose (see Penal Law § 240.26 [3]). Here, the evidence presented by petitioner at the hearing consisted primarily of petitioner’s testimony that respondent posted “negative posts and stuff” on social media about him including, in particular, two posts on Facebook about an unnamed “ex” that he believed referred to him, after which respondent blocked him from viewing her posts. We conclude under the circumstances of this case that the evidence presented by petitioner failed to establish by a preponderance of the evidence that respondent engaged in acts constituting harassment in the second degree … . Matter of Geremski v Berardi, 2023 NY Slip Op 04883, Fourth Dept 9-29-23

Practice Point: Here the finding respondent committed the family offense of harassment second degree was not supported by the preponderance of the evidence.

 

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MOTHER WAS PROPERLY FOUND TO HAVE DEFAULTED IN THIS CUSTODY MATTER; MOTHER’S ATTORNEY APPEARED BUT DECLINED TO PARTICIPATE; ALTHOUGH AN ORDER ENTERED UPON DEFAULT CANNOT BE APPEALED, CONTESTED MATTERS DETERMINED BY THE TRIAL COURT, HERE WHETHER MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED, CAN BE CONSIDERED UPON APPEAL FROM THE ORDER (FOURTH DEPT). ​

The Fourth Department determined Family Court properly found that mother had defaulted in this custody case, despite the appearance of her attorney, who declined to participate. The Fourth Department noted that, although orders issued pursuant to a default are not appealable, contested issues addressed by the court prior to the order can be appealed:

The court, concluding that the mother had adequate warning that she needed to appear visually at the hearing and ample time to ensure that she could so appear, denied the request for an adjournment and determined that it would proceed by inquest. Inasmuch as the mother’s attorney, although present, thereafter declined to participate in the inquest in the mother’s absence and instead elected to stand mute, we conclude that the court properly determined that the mother’s failure to appear in the manner required constituted a default … .

“[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]” … . Thus, in this appeal, review is limited to the mother’s contention that the court abused its discretion in denying her attorney’s request for an adjournment … . We reject that contention. Matter of Reardon v Krause, 2023 NY Slip Op 04880, Fourth Dept 9-29-23

Practice Point: Here mother did not appear in the custody case and her attorney appeared but declined to participate. Therefore Family Court properly found mother to be in default.

Practice Point: Although an order entered upon default is not appealable, an appeal from such an order brings up contested matters decided prior to the order. Here the appellate court considered the denial of mother’s attorney’s request for an adjournment.

 

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EQUIVOCAL AND UNSUBSTANTIATED EVIDENCE OF DEFENDANT’S DRUG ABUSE WAS NOT ENOUGH TO JUSTIFY THE 15-POINT DRUG-ABUSE ASSESSMENT UNDER SORA (FOURTH DEPT).

The Fourth Department, reversing County Court, determined 15 points should not have been assessed against the defendant under SORA for drug abuse. The evidence was too weak:

Here, we conclude that the People failed to prove by the requisite clear and convincing evidence that defendant had a history of substance abuse. Although the case summary presented by the People at the SORA hearing establishes that defendant was convicted under the Uniform Code of Military Justice (UCMJ) of possessing an unknown amount of testosterone and using an anabolic steroid … , which offense occurred nearly one year after the underlying sex offense of sexual abuse of a child … , there is “no evidence that defendant was ever screened for substance abuse issues” and ” ‘only very limited information about his alleged prior history of drug . . . abuse’ ” … . Indeed, the sole information in the record regarding defendant’s purported history of drug abuse is the “conclusory hearsay” statement … of a correctional treatment specialist—here, a licensed marriage and family therapist—who commented in the updated treatment assessment he prepared prior to defendant’s release from incarceration that defendant had “substance abuse problems with steroids pre-confinement” but that confinement had “cleaned . . . up” that problem such that defendant now understood “the repercussions of that type of abuse.” Inasmuch as the only evidence that defendant abused steroids consists of a ” ‘hearsay statement[] that [is] vague, . . . equivocal, and otherwise unsubstantiated,’ ” the People failed to establish by the requisite clear and convincing evidence that defendant had a history of substance abuse … . People v Currington, 2023 NY Slip Op 04874, Fourth Dept 9-29-23

Practice Point: Here the evidence purporting to demonstrate defendant had a history of drug abuse was deemed too weak to support the 15-point drug-abuse assessment under SORA.

 

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THE POLICE OFFICER INJURED IN THE TRAFFIC ACCIDENT AND THE CITY SEEKING RECOVERY OF PAYMENTS MADE STEMMING FROM THE OFFICER’S INJURY MUST SHARE THE $100,000 “PER PERSON” INSURANCE-POLICY LIMIT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the police officer injured in a car accident and the city suing for payments made for the officer’s salary and medical expenses had to share the $100,000 “per person”  policy-limit in the Safeco insurance policy:

… [T]here is a $100,000 policy limit for “each person” sustaining bodily injury. The policy provides that the limit of bodily injury liability for “each person” is the “maximum limit of liability for all damages, including damages for care, loss of services or death, resulting from any one auto accident” for bodily injury not resulting in death of “any one person” (emphasis added). The City here asserted a claim against the tortfeasors pursuant to General Municipal Law § 207-c (6), which creates a cause of action for municipalities for reimbursement of “such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the police officer shall have a cause of action for the injury sustained or sickness caused by such third party.” The municipality’s right to recover “is derived from its insured employee’s cause of action in negligence against the person causing such injury,” and the “right to bring the direct action is bottomed on the employee’s cause of action in negligence” … . … [T]he City’s statutory claim and plaintiff’s claim both result from the injuries sustained by plaintiff and are both included in the same $100,000 per person limit of liability in the policy … . Lewczyk v Safeco Ins. Co. of Am., 2023 NY Slip Op 04867, Fourth Dept 9-29-23

Practice Point: Here, pursuant to the unambiguous terms of the insurance policy, the police officer injured in a traffic accident and the city seeking recovery of the related salary and medical-expense payments must share the $100,000 “per person” insurance-policy limit.

 

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A COURT DOES NOT LOSE JURISDICTION OVER SENTENCING A DEFENDANT PURSUANT TO CRIMINAL PROCEDURE LAW 390.30 IF MORE THAN A YEAR ELAPSES BETWEEN CONVICTION AND SENTENCING (FOURTH DEPT).

The Fourth Department determined County Court did not lose jurisdiction to sentence defendant because more than a year elapsed between conviction and sentencing:

CPL 390.30 provides in relevant part that, “[i]n any case where the court determines that a defendant is eligible for a sentence of probation, the court, after consultation with the prosecutor and upon the consent of the defendant, may adjourn the sentencing to a specified date and order that the defendant be placed on interim probation supervision. In no event may the sentencing be adjourned for a period exceeding one year from the date the conviction is entered, except that upon good cause shown, the court may, upon the defendant’s consent, extend the period for an additional one year where the defendant has agreed to and is still participating in a substance abuse treatment program in connection with a . . . drug court” … . … [N]othing in CPL 390.30 (6) (a) states that a failure to sentence a defendant within one year of the date of conviction is a jurisdictional defect or that sentencing after that one-year period is prohibited … . People v Bryant, 2023 NY Slip Op 04857, Fourth Dept 9-29-23

Practice Point: CPL 390.30 does not deprive the sentencing court of jurisdiction if more than a year elapses between conviction and sentencing.

 

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HEARSAY STATEMENTS BY A CODEFENDANT SHOULD NOT HAVE BEEN ADMITTED TO SHOW THE STATE OF MIND OF THE INVESTIGATORS QUESTIONING THE DEFENDANT; THE INVESTIGATORS’ STATE OF MIND WAS NOT RELEVANT TO ANY ISSUE IN THE CASE (FOURTH DEPT).

The Fourth Department determined references in a recorded interrogation of defendant to hearsay statements made by a codefendant should not have been admitted to show the state of mind of the investigators. The error was deemed harmless:

” ‘[T]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted’ ” … . In opposing the motion, the People argued, and the court agreed, that the codefendant’s statements were admissible for the nonhearsay purpose of showing the state of mind of the investigators, specifically, that the investigators wanted to get defendant to admit to something … . But there was no reason to show the investigators’ state of mind when they were questioning defendant using the codefendant’s statements; their state of mind was simply not relevant to any issue in the case. People v Coley, 2023 NY Slip Op 04855, Fourth Dept 9-29-23

Practice Point: Here the state of mind of the investigators questioning defendant was not relevant to any issue in the case. Therefore the investigators’ hearsay references to statements made by a codefendant should not have been admitted in evidence. The error was deemed harmless however.

 

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THE PROCEDURE SUNY BUFFALO USED TO QUESTION PARTIES AND WITNESSES ABOUT ALLEGATIONS OF PETITONER-STUDENT’S SEXUAL MISCONDUCT (SUBMITTED WRITTEN QUESTIONS) VIOLATED THE SCHOOL’S TITLE IX POLICY (LIVE CROSS-EXAMINATION); THE SCHOOL’S DETERMINATION WAS ANNULLED AND THE RECORD WAS EXPUNGED (FOURTH DEPT).

The Fourth Department, reversing the State University of New York at Buffalo (SUNY Buffalo) (respondent), held that the determination finding petitioner, a former student, violated the prohibition against sexual violence in the student code of conduct was arbitrary and capricious. The determination was annulled and the record expunged:

… [R]espondent departed from its own published rules and guidelines by adjudicating the alleged misconduct under the Code of Conduct rather than its Title IX Grievance Policy (Title IX Policy). Respondent’s Title IX Policy was established pursuant to 34 CFR 106.44 (b) (1), which requires as relevant here that respondent, in response to a formal complaint, follow a grievance process that complies with 34 CFR 106.45 if it seeks to impose disciplinary sanctions against someone accused of “sexual harassment,” a term that encompasses petitioner’s alleged misconduct … . Although respondent was permitted to dismiss the formal Title IX complaint against petitioner after his withdrawal from the university (see id. § 106.45 [b] [3] [ii]), respondent was nevertheless bound to apply the grievance procedure set forth in § 106.45 if it sought to impose a disciplinary sanction for the alleged misconduct … .

… [T]he questioning procedure provided at the Code of Conduct hearing substantially departed from the questioning procedure set forth in the Title IX Policy, and that the departure rendered respondent’s disciplinary determination arbitrary and capricious … . Respondent’s Title IX Policy, which codifies the regulatory requirements in 34 CFR 106.45 (b) (6) (i), entitles “[e]ach party’s advisor [to] conduct live cross-examination of the other party or parties and witnesses . . . in real time.” However, respondent made the disciplinary determination based on its Code of Conduct questioning procedure, which prohibits live cross-examination and instead limits the parties to submitting written questions to hearing officers in advance of the hearing. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right” … , and inasmuch as the application of the procedure set forth in the Code of Conduct significantly impeded that right as outlined in the Title IX Policy, we conclude that respondent failed to substantially adhere to its own published rules and guidelines. Matter of Doe 1 v State Univ. of N.Y. at Buffalo, 2023 NY Slip Op 04838, Fourth Dept 9-29-23

Practice Point: SUNY Buffalo’s Title IX policy required live cross-examination of parties and witnesses in a sexual harassment investigation. The school followed its code of conduct which limits the questioning to written questions submitted to the hearing officers. The Title IX policy should have been followed. The determination was annulled and the record was expunged.

 

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